What Is the E-2 Treaty Investor Visa?

If you are a foreign entrepreneur who wants to live in the United States and run your own business here, you will hear about the E-2 visa sooner or later. It lets you enter the U.S. to develop and direct a business in which you have invested your own capital.

This first article answers a single question: what exactly is the E-2, and who is it designed for? Each requirement is covered in its own article later in the series.

The E-2 in one sentence

The E-2 is a temporary (nonimmigrant) visa for nationals of treaty countries who have made a substantial investment in a U.S. business and are coming to actively run it.

Each part of that sentence matters:

• Temporary. The E-2 does not grant permanent residence. However, it can be renewed for as long as the business continues to qualify.
• Treaty countries. Only citizens of countries with a qualifying treaty with the United States can apply.
• Substantial investment. You must put real money at risk in the business, not just plan to invest.
• Actively run. The E-2 is for owner-operators, not passive investors.

Why the E-2 exists

The E-2 comes from international commerce. Starting in the 19th century, the United States signed treaties of friendship, commerce, and navigation with trading partners. Later, it also signed bilateral investment treaties. These agreements promise that each country’s investors may enter the other country to manage their investments.

The E-2 is how the U.S. keeps that promise. This is why the visa’s terms vary by nationality: each country’s treaty relationship, and the reciprocal treatment its government gives to U.S. investors, shapes what its citizens receive.

The legal framework has three layers:

• Statute: Immigration and Nationality Act § 101(a)(15)(E)(ii).
• Regulations: 8 C.F.R. § 214.2(e) (Department of Homeland Security) and 22 C.F.R. § 41.51 (Department of State).
• Consular guidance: 9 Foreign Affairs Manual (FAM) 402.9, which consular officers follow when deciding E-2 visa applications.

Who the E-2 is designed for

The E-2 works best for people who want to build or buy a business and be personally involved in running it. Typical E-2 businesses include:

• restaurants, cafés, and bakeries;
• franchises (food service, fitness, education, home services);
• retail shops and e-commerce businesses with real U.S. operations;
• consulting, design, marketing, and professional service firms;
• technology startups;
• import and distribution companies; and
• the purchase of an existing, profitable small business.

What these have in common is an active business that sells goods or services, employs people or is likely to, and needs its owner’s direction.

Who the E-2 is not designed for

• Passive investors. Buying stocks, bonds, or rental property you do not manage does not qualify.
• Nationals of non-treaty countries. Citizens of India, China (mainland), Brazil, and Russia, for example, are not eligible, unless they also hold citizenship of a treaty country.
• People who want a green card now. The E-2 is a renewable temporary status. It can be a platform for a later green card through a separate process, but it is not one itself.
• Very small, “job-for-myself” ventures. A business that would only ever support its owner at a subsistence level is considered “marginal” and generally does not qualify.

Principal investors and employees

The E-2 has two kinds of principal applicants:

1. The investor. This is the person who owns and controls the business, usually through at least 50% ownership.
2. Employees of the E-2 business. An E-2 company can bring in key employees in E-2 status. They must share the company’s treaty nationality and fill an executive or supervisory role, or bring skills essential to the business.

The investor’s spouse and unmarried children under 21 can join as dependents, whatever their own nationality.

E-2 vs. E-1

The E-2 has a sibling, the E-1 Treaty Trader visa. The E-1 is for companies that conduct substantial trade, principally between the United States and the treaty country, such as importing and exporting goods or services. The E-1 requires no capital investment but does require an established trade volume.

A company that trades rather than invests should consider both options.

A temporary visa with a long horizon

Because the E-2 is a nonimmigrant visa, you must intend to leave the U.S. when your E-2 status ends. But there are two important differences from most other temporary visas:

• No required home abroad. Many temporary visas require you to keep a home abroad. The E-2 does not.
• No limit on renewals. There is no maximum number of renewals. As long as the business keeps operating and you keep directing it, you can keep renewing.

For many families, that makes the E-2 a long-term way of life, not a short stay.

What the rest of this series covers

Each article focuses on one topic:

Attorney’s perspective

In a consultation, I first confirm whether the E-2 is truly the best route for you. Sometimes an L-1, EB-5 or another option fits better. If your long-term goal is a green card, we plan that path from the start.

For advice about your own situation, call +1 718-218-5805 or schedule a consultation. We meet clients in Flushing and Manhattan, in English or Chinese.

References

• U.S. Department of State, Treaty Trader & Investor Visas: https://travel.state.gov/content/travel/en/us-visas/employment/treaty-trader-investor-visa-e.html
• 9 FAM 402.9: https://fam.state.gov/fam/09FAM/09FAM040209.html
• 8 C.F.R. § 214.2(e): https://www.ecfr.gov/current/title-8/section-214.2
• USCIS, E-2 Treaty Investors: https://www.uscis.gov/working-in-the-united-states/temporary-workers/e-2-treaty-investors

Series overview

This article is for general information only and is not legal advice. Reading it does not create an attorney-client relationship. For advice about your situation, please contact us.

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